This study examined the influence of two organizational context variables, codes of conduct and supervisor advice, on personnel decisions in an experimental simulation. Specifically, we studied personnel evaluations and decisions in a situation where codes of conduct conflict with supervisor advice. Past studies showed that supervisors’ advice to prefer ingroup over outgroup candidates leads to discriminatory personnel selection decisions. We extended this line of research by studying how codes of conduct and code enforcement may reduce this form of discrimination. (...) Eighty German managers evaluated and selected candidates from an applicant pool including Germans (ingroup members) and foreigners (outgroup members). Supervisor advice to prefer ingroup members lowered suitability ratings of outgroup members as well as their chances to be selected for an interview. Ethical codes of conduct referring to equal opportunities limited this form of discrimination, but only when codes were enforced by sanctions and integrated into organizational every-day practice. The implications of these findings for research and practice are discussed. (shrink)

The United States District Court of Kansas, in Gudenkauf v. Stauffer, Znc., granted the defendants motion for summary judgment for the plaintiff's claims of pregnancy-related discrimination under the Americans with Disabilities Act and the Family and Medical Leave Act of 1993, but the court denied a similar motion for the plaintiff's claim under the Pregnancy Discrimination Act. The court found summary judgment to be appropriate for the ADA claim based on its finding that the plaintiff's pregnancy did not (...) constitute an impairment as required by the statute; as for the FMLA claim, it determined that the defendants failure to grant the plaintiff's leave request did not violate the statute. However, the court determined that summary judgment was inappropriate for the PDA claim because of material questions of fact about whether the defendant had acted with discriminatory intent.In considering the motions for summary judgment, the court accepted the following facts as incontrovertible. Plaintiff Michaela Gudenkauf worked for the defendant Stauffer, Inc. (shrink)

This Article argues that a universal approach to age discrimination promotes justice (including intergenerational justice) and efficiency. As explained herein, legal regimes regulate age discrimination in employment in various ways. While some regimes create specific anti–age discrimination legislation, others ban most kinds of employment discrimination, including age discrimination, in a general way. These latter promote a universal approach to age discrimination. The current Article explores the theoretical justifications for either a particularistic or (...) a universal approach to age discrimination. Additionally, it enriches its theoretical discussion by taking and presenting a snapshot of current litigation in Israel – a country that has adopted a universal approach to age discrimination. (shrink)

When passed, the Equal Pay Act and Title VII of the Civil Rights Act established two distinct views of employment discrimination and two different enforcement structures—one aimed at sex and the other at race discrimination. To explain this bifurcated approach to employment discrimination, it is necessary to examine not only social class but also gender and race relations. Sex and race discrimination bills addressed some of the problems of postwar capitalism in the United States. (...) At the same time, however, the bifurcated discrimination policy enforced women's dependence on men in families. But it did this differently for white men than it did for men of color. (shrink)

The first of three commentaries on “A Defense of Genetic Discrimination,” from the July‐August 2013 issue.

Luck egalitarianism is a responsibility-sensitive theory of distributive justice. Its application to health and healthcare is controversial. This article addresses a novel critique of luck egalitarianism, namely, that it wrongfully discriminates against those responsible for their health disadvantage when allocating scarce healthcare resources. The philosophical literature about discrimination offers two primary reasons for what makes discrimination wrong (when it is): harm and disrespect. These two approaches are employed to analyze whether luck egalitarian healthcare prioritization should be considered wrongful (...) discrimination. Regarding harm, it is very plausible to consider the policies harmful but much less reasonable to consider those responsible for their health disadvantages a socially salient group. Drawing on the disrespect literature, where social salience is typically not required for something to be discrimination, the policies are a form of discrimination. They are, however, not disrespectful. The upshot of this first assessment of the discrimination objection to luck egalitarianism in health is, thus, that it fails. (shrink)

Employers sometimes use personality tests in hiring or specifically look for candidates with certain personality traits such as being social, outgoing, active, and extraverted. Therefore, they hire based on personality, specifically extraversion in part at least. The question arises whether this practice is morally permissible. We argue that, in a range of cases, it is not. The common belief is that, generally, it is not permissible to hire based on sex or race, and the wrongness of such hiring practices is (...) based on two widely accepted principles: the Relevance Principle and the Fairness Principle. The Relevance Principle states that hiring should be based on what is relevant to job performance, while the Fairness Principle states that hiring should be based on features that individuals can control. Since hiring based on sex or race violates these principles, it is wrong. However, we argue that, in a range of cases, hiring based on extraversion also violates these principles, and assuming the validity of the Relevance and the Fairness Principles, it follows that personality discrimination is morally wrong in those cases. (shrink)

The science and technology of genetic testing is rapidly advancing with the consequences that genetic testing may well offer the prospect of being able to detect the onset of future disabilities. Some recent research also indicates that certain behavioural profiles may have a strong genetic basis, such as the determination to succeed and win or the propensity for risk-taking, which may be of interest to third parties. However, as this technology becomes more prevalent there is a danger that the genetic (...) information may be misused by entities such as employers, insurance companies, educational facilities, and finance companies and that people with particular genetic profiles may be discriminated against.This book explores the different types and the potential uses of genetic testing. The book highlights the ethical and legal dilemmas and the challenges arising as a result of emerging and rapidly advancing genetic science. Chapters in the book assess the importance and impact of the US Genetic Information Non-Discrimination Act (GINA) in the employment and health insurance contexts asking whether it is proving to be an effective tool in addressing the issue of genetic discrimination and alleviating individuals' fears of discrimination. The book then goes on to make the case for regulation at the European Union level in order to protect the privacy of genetic information and to prevent the discriminatory use of genetic information in Europe. It considers what can be learnt from the experience of the US in addressing ethical and legal issues as well as the impact that the UN Convention on the Rights of Persons with Disabilities is having on this debate within the EU. (shrink)

The surge in genetic research and technology, fuelled in large part by the Human Genome Project, has resulted in the continuing expansion of the range of genetic tests and other genetic information available to physicians, insurance companies, employers, and the general public.’ Genetic tests can provide presymptomatic medical information about an individual, including information about an individual's increased risk of future disease, disability, or early death. These tests can reveal information about an individual's carrier status, that is, the likelihood of (...) parents passing on to their children a genetic condition, and about the health of the individual's family members. Although genetic information provides the promise of early detection and treatment of certain illnesses and disorders, it also poses risks. As a result of the increase in genetic testing and information, legal issues regarding employment discrimination on the basis of genetic information are emerging. (shrink)

Negative gender-role stereotypes continue to pervade the careers of many women. The current study examines the careers of female National Health Service (NHS) nurses in the United Kingdom. The study identifies organizational mindsets which militate against women's career advancement. These mindsets form the basis of the "ethic of discrimination" which both maintains and perpetuates unequal outcomes for women in NHS nursing. We examine the implications for management in promoting non-discriminatory decision making, and the barriers that are faced in overcoming (...) the "ethic of discrimination". (shrink)

This article illustrates some of the difficulties of defining discrimination and briefly sketches the benefits and desiderata of doing so. It then examines and defines generic direct discrimination as an agent treating two groups differently because of the property that defines one of the groups as a group, in a way that is worse for that group, clarifying each of these three conditions in turn. It considers two arguments for further conditions: that an act must target one among (...) a particular set of groups to constitute discrimination, and that an act must be in some sense morally wrong to constitute discrimination. It concludes that while these objections are forceful it may be the case that they illustrate that we employ multiple, partly overlapping concepts of discrimination, and that it may be more important to recognize this heterogeneity than it is to attempt to establish a dominant or unitary definition. (shrink)

The surge in genetic research and technology, fuelled in large part by the Human Genome Project, has resulted in the continuing expansion of the range of genetic tests and other genetic information available to physicians, insurance companies, employers, and the general public.’ Genetic tests can provide presymptomatic medical information about an individual, including information about an individual's increased risk of future disease, disability, or early death. These tests can reveal information about an individual's carrier status, that is, the likelihood of (...) parents passing on to their children a genetic condition, and about the health of the individual's family members. Although genetic information provides the promise of early detection and treatment of certain illnesses and disorders, it also poses risks. As a result of the increase in genetic testing and information, legal issues regarding employment discrimination on the basis of genetic information are emerging. (shrink)

Pregnancy-based employment discrimination has long been a topic of interest for gender inequality scholars and civil rights agencies. Prior work suggests that employer stereotypes and financial interests leave pregnant women vulnerable to being fired. We still know little, however, about women’s interpretations of their terminations and how employers justify such decisions in the face of arguably protective laws. This article provides much needed, in-depth analyses of such dynamics and a relational account of pregnancy-based employment discrimination claims. (...) Elaborating on theoretical expositions of power and research surrounding the patriarchal character of organizational life, we draw on unique quantitative and qualitative data from verified cases of pregnancy-based firing discrimination. Our analyses reveal a two-pronged legitimation process where employers symbolically vilified pregnant workers while simultaneously amplifying ostensibly meritocratic organizational procedures and concerns. Pregnancy discrimination plaintiffs attempted to counter employer arguments. Yet, their limited power within the organizational hierarchy along with the culturally resonant nature of employer logics—logics that seem gender-neutral but that reify gendered assumptions and prioritize business profit—place pregnant women at a considerable disadvantage. Without attending to such cultural and structural power imbalances and the relational processes that undergird them, pregnancy discrimination will remain a significant problem. (shrink)

The evidence suggests that employers discriminate against ex-offenders in the labour market. The problem is potentially serious as it involves a substantial proportion of the population, especially the male population. Since research has shown that most people with prior convictions stop offending by their late 20s or early 30s, the validity of selection based on criminal record remains questionable. This paper examines the need for legal protection of ex-offenders by limiting employers' access to, and use of, information on criminal background. (...) The rights and interests of the various parties involved, employers, ex-offenders, and the general public, are discussed. Approaches to the legal protection of ex-offenders in Australia are reviewed and legislative changes proposed. (shrink)

Two cases in 2012 involved employment discrimination claims. In one, a Catholic diocese had refused to renew the contract of a teacher who had sought in vitro fertilization. In another, earlier case, a Lutheran elementary school had terminated the contract of a teacher for “damaging her working relationship” with the school by “threatening to take legal action” when she was not permitted to return to work after disability leave related to narcolepsy. In both cases, the employers have argued (...) that the employee's discrimination claims should be dismissed solely because of the religious character of the employer organization. The specific legal defenses in each suit differ somewhat, but ultimately they both rely on the First Amendment to exempt religious employers from civic responsibilities imposed by law on other private employers. (shrink)

Racial discrimination uses race as grounds to discriminate in the treatment owed to others; sexual discrimination uses people’s sexual features as grounds for determining how they should be treated compared to others. Analogously, statistical discrimination treats statistical inferences about the groups to which individuals belong as grounds for discriminating amongst them in thought, word and deed. Examples of statistical discrimination include the employer who won’t hire women of childbearing age, because they are likely to take maternity (...) leave at some point in their careers; or insurers who wish to charge more to young drivers than to more experienced ones, because they are more likely to have accidents than the latter – or to favour women over men in the cost of premiums for similar reasons. Finally, a famous – infamous – example of statistical discrimination is racial profiling for police purposes, where statistical evidence of differential propensities to crime are used to justify preventive police measures, such as ‘stop and search’, which mainly target young black men, and other racialized minorities. The philosophical appeal of the concept of statistical discrimination is fairly easy to see: it draws our attention to the way that probabilistic claims figure, or might figure, in the distribution of social costs and benefits such as jobs, security, insurance. It therefore gives us a way to test our moral intuitions across different cases, enables us to see how far our moral judgements can be generalised, and whether they have been affected by particularly emotive examples, or by the particular features of a real or hypothetical case. But does that mean that statistical discrimination is unproblematic? This article takes issue with some arguments of Kasper Lippert Rasmussen on the topic. (shrink)

In many jurisdictions the list of factors for which anti-discrimination law applies has been expanded to include sexual orientation. As a result, moral and legal difficulties have arisen for religious organizations whose basic beliefs include the belief that sexual acts between persons of the same sex are immoral. In light of these difficulties, is anti-discrimination law of this sort unjust? Recently John Finnis has argued that, as commonly applied, such anti-discrimination law is disproportionate and therefore unjust. In (...) this essay, I critically examine Finnis’s argument, and argue that, on account of the conception of disproportionateness that is employed, it does not succeed. So as to enable the argument from disproportionateness to succeed, I develop and defend a modified conception of disproportionateness. -/- . (shrink)

Conscious visual perception can fail in many circumstances. However, little is known about the causes and processes leading to failures of visual awareness. In this study, we introduce a new signal detection measure termed subjective discriminability of invisibility that allows one to distinguish between subjective blindness due to reduction of sensory signals or to lack of attentional access to sensory signals. The SDI is computed based upon subjective confidence in reporting the absence of a target . Using this new measure, (...) we found that target misses were subjectively indistinguishable from physical absence when contrast reduction, backward masking and flash suppression were used, whereas confidence was appropriately modulated when dual task, attentional blink and spatial uncertainty methods were employed. These results show that failure of visual perception can be identified as either a result of perceptual or attentional blindness depending on the circumstances under which visual awareness was impaired. (shrink)

Appearance discrimination may restrict the opportunities of minority groups, including national, religious, and racial minorities. Employers sometimes impose appearance codes on their workforce that disproportionately affect these groups, potentially limiting their access to jobs. It is tempting to think that the solution here is simple. In practice, it might be said, the appearance features that are excluded by these codes often mask the real basis of the discrimination. Seen in their true light, these codes generally involve direct (...) class='Hi'>discrimination on the basis of race, religion or nationality. Even when they do not, if they have a worse effect on a disadvantaged group, then they are cases of indirect discrimination. But things are not that simple, for an appearance feature can be a genuine reaction qualification, i.e., it can be a genuine qualification in virtue of the responses of those who come into contact with an employee, such as customers or clients. This chapter addresses the issue of when it is morally permissible for an employer to adopt an appearance code that disadvantages a minority group by pandering to the preferences of their customers or clients in cases where these preferences express their aesthetic tastes or are rooted in reasonable conceptions of the good to which they adhere. Consideration is given to whether the importance of integration might provide a reason to regard appearance codes as morally impermissible when it is harder or more costly for a minority group, such as a national, religious, or racial minority, to conform to them. (shrink)

This essay critically examines economist and philosopher Amartya Sen's writings as a potential resource in religious ethicists' efforts to analyze discrimination against girls and women and to address their well-being and agency. Delineating how Sen's discussions of "missing women" and "gender and cooperative conflict" fit within his "capability approach" to economic and human development, the article explores how Sen's methodology employs empirical analysis toward normative ends. Those ends expand the capability of girls and women to function in all aspects (...) of their society. It concludes with a discussion of ways to engage Sen's work within religious ethics. (shrink)

Against the background of a deeply uneven package of work–family reconciliation measures and an increasing focus on engaging men in unpaid care work, in this article I discuss the extension of the Irish discrimination law framework to provide protection against family status discrimination to workers who are engaged in certain care relationships. While this development of the law to recognize a relational understanding of inequality is welcome, its confined definition of family status fails to capture the range of (...) workers’ caring relationships and networks. Adopting a contextualized assessment of 12 years of litigation generated under the ‘family status’ ground, with reference to complainants’ gender and work status, the study considers the types of experiences being litigated as ‘family status’ discrimination. The study show how much of the nature and forms of inequality presented before the tribunals are beyond the conceptual boundaries of the principle of equal treatment that depends upon a sameness of treatment model with the ‘care-less’ comparator. Despite its potential to question the neutrality of workplace structures predicated upon the division between paid work and unpaid care, the principle of indirect family status discrimination has been under utilised as a litigation strategy. The most successful dimension of family status discrimination protection has been in respect of its ability to capture the negative stereotyping of worker–carers who continue to perform as ideal workers. I suggest that this extension of a limited negative rights framework, when considered alongside the state’s extremely poor support for workcare reconciliation more broadly, places negligible obligations on employers, and that the gender neutrality implicit in its provisions have yet to impact on gender equality as regards work–care reconciliation. (shrink)

Markets, it is sometimes said, are hard on discrimination. An employer who finds himself refusing to hire qualified blacks and women will, in the long run, lose out to those who are willing to draw from a broader labor pool. Employer discrimination amounts to a self-destructive “taste” – self-destructive because employers who indulge that taste add to the costs of doing business. Added costs can only hurt. To put it simply, bigots are weak competitors. The market will drive (...) them out.On this account, the persistence of employment discrimination on the basis of race and sex presents something of a puzzle. And if markets are an ally of equality and a foe of employment discrimination, perhaps discrimination persists because of something other than markets. Perhaps labor unions are to blame; perhaps the real culprit is the extensive federal regulation of the employment market, including minimum-wage and maximum-hour laws and unemployment compensation. If competitive markets drive out discrimination, the problem for current federal policy lies not in the absence of aggressive anti-discrimination law, but instead in the absence of truly competitive markets.If this account is correct, the prescription for the future of anti-discrimination law is to seek ways to free up employers from the wide range of governmental disabilities – including, in fact, anti-discrimination law itself. The argument seems to be bolstered by the fact that some groups subject to past and present prejudice – most notably, Jews and Asian-Americans – have made substantial progress in employment at least in part because of the operation of competitive markets. (shrink)

Research providing consistent evidence of pervasive discrimination against overweight job applicants and employees in the American workplace raises important questions for organizational stakeholders. To what extent is the disparate treatment of job applicants or employees based on their weight ethically justified? Are there aspects of weight discrimination that make it more acceptable than discrimination based on other characteristics, such as race or gender? What operational steps can employers take to address concerns regarding the ethical treatment of overweight (...) individuals in the workplace? This article investigates these and related questions. Its purpose is to provide information and analysis that will assist organizations in formulating ethical responses to a widespread phenomenon: weight discrimination in the workplace. Although its focus is the American workplace, the proposed employer ethical obligations and the practical guidance that is provided are viewed as generalizing across countries and cultures. (shrink)

The complex history of pandemics has created a diversified array of anti-epidemic responses, which have allowed structures of authority to express their power in multiple ways. In this paper, by considering theories applicable to cases ranging from Europe to Asia, from the 11th to the 18th century, we conduct a comparative analysis capable of identifying common traits and radical differences, aiming to show how such deployment of power was not always commensurate with the medical theories of the age, and with (...) the gravity of the epidemiological situation. Specifically, we analyse how Western European States, in their process of formation, employed the concept of ‘public health’ to create the grounds for an unprecedented exercise of power over the private sphere. Furthermore, we compare this attitude with the discrimination of the minority known as burakumin in Japan, which was destined to undertake any ‘dirty’ or ‘impure’ occupation, to preserve the immunity of the community. In other words, we examine how structures of power have exploited states of exception to implement control measures beyond the needs of the situation through an increasingly hypertrophic apparatus of security; and ways in which political authorities have not aligned with medical or philosophical authorities of their times, for opportunistic reasons that benefited their own social, religious, or racial group. (shrink)

This Open-Access-book examines the phenomenon of discrimination using a descriptive approach. Discrimination is omnipresent, whether it is people who discriminate against other people or, more recently, also machines that discriminate against people. The first part of the analysis employs decision theory on discrimination, leading to two fundamental subtypes: taste-based discrimination and statistical discrimination. The second part links taste-based discrimination to social identity theory, demonstrates that not all taste-based discrimination is ultimately statistical discrimination, (...) and reveals the evolutionary origins of our tastes. The third part surveys how people get their beliefs for statistical discrimination and thereby shows that they often deviate from Bayesianism: they have inherent prior beliefs and do not exclusively update their beliefs according to Bayes’ law. Additionally, the analysis of belief formation highlights the importance of the learning environment. The last part reassembles the previously dissected aspects of discrimination, presents a new descriptive model of discrimination, and lists five implications for a normative theory of discrimination. (shrink)

It is often thought that traditional recidivism prediction tools used in criminal sentencing, though biased in many ways, can straightforwardly avoid one particularly pernicious type of bias: direct racial discrimination. They can avoid this by excluding race from the list of variables employed to predict recidivism. A similar approach could be taken to the design of newer, machine learning-based (ML) tools for predicting recidivism: information about race could be withheld from the ML tool during its training phase, ensuring that (...) the resulting predictive model does not use race as an explicit predictor. However, if race is correlated with measured recidivism in the training data, the ML tool may ‘learn’ a perfect proxy for race. If such a proxy is found, the exclusion of race would do nothing to weaken the correlation between risk (mis)classifications and race. Is this a problem? We argue that, on some explanations of the wrongness of discrimination, it is. On these explanations, the use of an ML tool that perfectly proxies race would (likely) be more wrong than the use of a traditional tool that imperfectly proxies race. Indeed, on some views, use of a perfect proxy for race is plausibly as wrong as explicit racial profiling. We end by drawing out four implications of our arguments. (shrink)

With advances in genetic technology, there are increasing concerns about the way in which genetic information may be abused, particularly in people at increased genetic risk of developing certain disorders. In a recent case in Hong Kong, the court ruled that it was unlawful for the civil service to discriminate in employment, for the sake of public safety, against people with a family history of mental illness. The plaintiffs showed no signs of any mental health problems and no genetic (...) testing was performed. This was the first case concerning genetic discrimination in common law jurisdictions, therefore the court's judgment has implications for how genetic discrimination cases may be considered in the future. The court considered it inappropriate to apply population statistics or lifetime risks to individuals while examining fitness for work. It recommended an individualised assessment of specific risks within the job, relative to other risks posed by that workplace. (shrink)

Background: Discrimination and injustice are big obstacles in nurses’ way to socialization and are among the major clinical challenges faced by nurses. Workplace discrimination is associated with such negative consequences as stress, fatigue, demoralization, loss of professional commitment, tension and conflicts at work, and resignation. A review of literature shows that not much research has been dedicated to workplace discrimination in nursing. Objective: This study aims to investigate nurses’ perception of workplace discrimination. Method: This cross-sectional study (...) was conducted in the hospitals affiliated with a university of medical sciences in the largest city in the south of Iran in 2019. The participants consisted of 597 nurses who were selected through stratified random sampling. Data were collected using a researcher-made workplace discrimination questionnaire and analyzed in SPSS v. 21. Findings: The mean of the nurses’ workplace discrimination scores was found to be 102.57 ± 14.5, which is considered as moderate. The nurses’ mean scores for the dimensions of vertical and horizontal discrimination, consequences of discrimination, and unfair promotion were moderate. As for the two other dimensions of workplace discrimination, namely, gender discrimination and cultural-organizational discrimination, the participants’ mean scores were low. There was a significant relationship between the nurses’ workplace discrimination mean score on the one hand and their employment status and work experience on the other. However, the nurses’ workplace discrimination mean score was not found to correlate with their level of education, marital status, and gender. Ethical consideration: This study has been approved by the ethics committee of the university. All the participants had signed the written informed consent form before participation. Conclusion: Hospital managers should take measures to reduce discrimination and establish organizational justice to raise nurses’ morale and improve the quality of their performance as caregivers. (shrink)

This article is about the rights of the Roma in North Macedonia and the level of discrimination that Roma are facing while employed in the public sector in the Republic of North Macedonia. The aims and objectives of the article are theoretical and practical understanding of the situation of Roma and the violation of their rights through direct and indirect discrimination at work. The data was collected during the period from May-July 2019 via 52 collected questionaries from a (...) total of 70 public servants who were asked to be a part of the research. The article shows new data we have collected from employed Roma as public servants in different institutions in the state. The surveyed public servants were 52 in total, from which 34 are employees with secondary education, 17 are with university education and only 1 has a masters degree. The questionnaire is composed out of 17 questions about the forms of discrimination, feeling or witnesing discrimination at their workplace, who caused the discrimination, witnessing the spread of prejudices and stereotypes about the Roma, rejection of colleagues to share an office with Roma, and who caused the discrimination. One of the results shows that 55% of the surveyed Roma did not have a single training from their employer in the last 12 months and that 69% of those surveyed stated that they felt discrimination in the last 12 months on everyday basis. (shrink)

The purpose of this article is to argue in favor of a private employer’s right to discriminate amongst job applicants on any basis he chooses, and this certainly includes unlawful characteristics such as race, sex, national origin, sexual preference, religion, etc. John Locke and many after him have argued that people have natural rights to life, liberty, and property or the pursuit of happiness. In this view, law should be confined to protecting these rights and be limited to prohibiting other (...) people from transgressing those rights. The law should not hinder an employer’s ability to discriminate, any more than it should compel people to marry against their wishes. These laws generally emerge from a moral perspective that people think should be imposed on everyone else. But those who don’t welcome those morals are in effect being coerced to abide by them against their will; this is unethical. Finally, it will be argued that the free market has mechanisms by which discrimination will, be rendered powerless to harm its victims. (shrink)

In Britain, Employment Tribunals (ET) adjudicate on whistleblowing legislation. They do so with the overriding aim to adjudicate cases fairly and justly, by hearing parties on an equal footing. This paper presents research questioning this rule-of-law assumption vis-a-vis power imbalances that relate to whistleblowing. Using multinomial logistic regression analysis, we analyse all cases at ET in England and Wales between 2015 and 2018, that included a whistleblowing claim and that went to preliminary hearing or beyond. We find that several (...) variables have an effect on the relative representational strength (RRS) at ET, but not on the outcome of the whistleblowing claim. However, whistleblowing claims brought in combination of discrimination claims (41%) have lower RRS and less favourable outcomes for the whistleblowing claim. (shrink)

This study assesses the extent to which job application forms violate the New Zealand Human Rights Act. The sample for the study includes 229 job application forms, collected from a variety of large and small, public- and private-sector organizations that together employ approximately 200,000 workers. Two hundred and four or 88% of the job application forms contain at least one violation of the Act. One hundred and sixty five or 72% contain two or more and 140 or 61% contain three (...) or more violations. The most common violations concern age, gender, nationality, and disability. The least common concern political opinion, ethical belief, religious belief, and sexual orientation. Despite widespread violations, many forms do have non-discriminatory questions that yield the same kind of useful information as discriminatory questions. Employers could incorporate these into their job application forms to bring themselves into compliance with the law. The same lessons also generally apply to North American employers, given the high degree of comparability between American, Canadian, and New Zealand anti-discrimination laws. (shrink)

The use of machine learning algorithms has become ubiquitous in hiring decisions. Recent studies have shown that many of these algorithms generate unlawful discriminatory effects in every step of the process. The training phase of the machine learning models used in these decisions has been identified as the main source of bias. For a long time, discrimination cases have been analyzed under the banner of disparate treatment and disparate impact, but these concepts have been shown to be ineffective in (...) the context of AI. This paper examines the possibility of studying algorithmic discrimination from the perspective of negligence law. Negligent selection and validation of datasets and classifiers is a salient cause of improper training in machine learning. It is a breach of an employer’s duty to protect others, a failure of its exercise of due care in the manner of choosing employees. Adopting negligence to algorithmic discrimination requires a reformulation of what is foreseeable and reasonable within the context of black box algorithms, and a shift in the burden of proof to the employer, who must present evidence of its efforts to avoid bias. (shrink)

Increasing empirical research on productivity supports the use of statistical or ‘rational’ discrimination in hiring. The practice is legal for features of job applicants not covered by human rights discrimination laws, such as being a smoker, residing in a particular neighbourhood or being a particular height. The practice appears largely morally innocuous under existing philosophical accounts of wrongful discrimination. This paper argues that lawful statistical discrimination treats job applicants in a way that may be considered degrading, (...) and is likely to constrain people’s freedoms in relation to employment, thus giving us reason for moral concern. (shrink)

Many legal disputes turn on scientific, especially statistical, evidence. Traditionally scientists have accepted only that statistical evidence which satisfies a 95 percent (or 99 percent) rule — that is, only evidence which has less than five percent (or one percent) probability of resulting from chance.The rationale for this rule is the reluctance of scientists to accept anything less than the best-supported new knowledge. The rule reflects the internal needs of scientific practice. However, when uncritically adopted as a rule for admitting (...) legal evidence, the seemingly innocuous 95 percent rule distorts the balance of interests historically protected by the legal system. In particular, plaintiffs in toxic tort and employment discrimination suits are effectively held to a heavier burden of proof in showing that their injuries were more probably than not caused by the defendant's actions. The result is that too many victims of toxic torts or employment discrimination cannot win legal redress for their injuries. (shrink)